Duty of Care

At common law a duty of care will generally arise when the defendant should have foreseen that their conduct could result in injury to the plaintiff (see Donoghue v Stevenson [1932] AC 562).

There are recognised categories of relationship which give rise to a duty of care:

landlord to tenant

doctor to patient

solicitor to client

public authority to a member of the public such as a road user or entrant to a public area

occupier to entrant of private premises

road user to road user

manufacturer of goods and supplier of services to a consumer

prison authority to prisoner and detainee

victim to their rescuer.

In some cases where the defendant has a high degree of control over the risk and there is either a special dependence or special vulnerability on the part of the plaintiff, the defendant will be said to owe a ‘non-delegable duty’. This means the defendant cannot escape liability by passing on the duty to take care for the plaintiff’s safety to a third party.

The following relationships are recognised as giving rise to a non-delegable duty of care:

employer to employee

hospital to patient

school and teacher to student.

Some relationships are recognised as giving rise to immunity from a duty of care:

a barrister acting in circumstances intimately connected to a case in court

a rescuer who goes to the aid of another person in an emergency situation, including a doctor rendering emergency first aid.

Sometimes, injuries can occur in circumstances outside of any recognised category of relationship giving rise to a duty of care. In these novel cases, the court will apply the following principles in determining whether a duty of care is owed:

The kind of harm suffered by the plaintiff must be recognised as being compensable and an infringement of a legally recognised right.

The harm must have been a reasonably foreseeable result of the defendant’s negligence.

The court will then draw analogies with any established category or categories of duty and, through a process of induction and deduction, apply the factors which are relevant to those established categories to the case at hand (Sullivan v Moody [2001] 207 CLR 562).

Breach of duty of care

The High Court laid down the test to determine whether a defendant has breached the duty of care in Wyong v Shirt (1980) 146 CLR 40. The test requires the following questions to be answered:

Would a reasonable person in a position of the defendant have foreseen a risk of injury to the plaintiff or the class of persons to which the plaintiff belonged arising from their conduct?

What would a reasonable person have done in response to that foreseeable risk?

The court must always judge the defendant’s conduct in light of what was known to the defendant at the time of the alleged breach and without the benefit of hindsight.

Factors which may serve to lower the standard of care owed by a defendant are:

if the conduct took place in circumstances of emergency

if the defendant is a child or a person under a disability.

Similarly, a higher standard may be owed in certain circumstances if:

the defendant holds themselves out as having special skills, knowledge or expertise

the plaintiff is a child and the defendant is an adult.

Intoxication on the part of the defendant does not lower the standard of care owed by the defendant to others. Intoxication on the part of the plaintiff does not mean the defendant owes a lower standard of care.

Acknowledgement of Country

Caxton Legal Centre Incorporated acknowledges the Jagera (Yuggera) and Turrbul peoples who are the Traditional Custodians of this land on which we work. We recognise the ongoing connection to the land, waters and community of the Traditional Custodians. We also recognise, respect and celebrate the cultural distinctions of the First Nations peoples and value their rich and positive contribution to Queensland and to broader Australian society. With respect we strive to achieve justice and inclusion for Aboriginal and Torres Strait Islander people.

Disclaimer and Copyright

The Queensland Law Handbook is produced by Caxton Legal Centre Inc (ABN 57 035 448 677) with the assistance of volunteers with legal experience in Queensland.

The Handbook is intended to give general information about the law in Queensland as at July 2016.

The content of the Queensland Law Handbook does not constitute legal advice, and if you have a specific legal problem, you should consult a professional legal advisor.Read More